Free Order on Motion to Seal Document - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Timothy Lee Ward, Plaintiff -vsKarr, et al., Defendants CV-03-2159-PHX-ROS (JRI) ORDER

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Under consideration is Defendants' Motion to File Documents Under Seal, filed April 15, 2008 (#138). Defendants seek leave to file under seal Exhibits C through H of their Statement of Facts, lodged April 15, 2008 (#139). Defendants intend to deny not only the public, but Plaintiff access to these documents. Defendants relate that the proffered documents are records relating to other inmates, and are offered to rebut Plaintiff's claim that he has been treated differently than similarly situated inmates. Defendants cite the restriction under Ariz. Rev. Stat. § 31-221 on disclosure of prisoner records. Plaintiff opposes (#143) the motion, insofar as it seeks to preclude his access to the documents, arguing that Defendants had argued (in response to Plaintiff's earlier motion to seal) that documents filed under seal continue to be exchanged between parties. Plaintiff proposes that the documents be fully identified and redacted. Defendants reply (#147) that they do in fact intend to deny Plaintiff access to the documents, and ask the Court to conduct an in camera review of the documents in the course of ruling on their summary judgment motion. Defendants do not respond to Plaintiff's

proposal that redacted copies be provided, and the Court presumes that no redaction is possible which would suffice to serve each party's interests. Filing Under Seal - The Court finds Defendants' proposal that the exhibits be filed under seal, as to the public is unchallenged. However, Plaintiff does not possess all the
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relevant interests. "In this circuit, we start with a strong presumption in favor of access to court records. The common law right of access, however, is not absolute and can be overridden given sufficiently compelling reasons for doing so." Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). Here, Defendants assert that the other inmate has confidentiality rights in these documents, and that he has not consented to its disclosure. Defendants do not suggest that they have sought and been denied such consent. Defendants do not identify the source of such right of confidentiality. Perhaps Defendants believe it springs from Ariz. Rev. Stat. § 31-221. However, that statute merely establishes the constraints on the state prison's record keeping system. It does not appear to create a privilege in any given inmate. Even if § 31-221 could be construed as granting inmates a privilege, privileges in federal proceedings, particularly those asserting violations under 42 U.S.C. § 1983 are not governed by state law, but by federal law of privilege. Fed.R.Evid. 501. See generally 8 Fed. Prac. & Proc. Civ.2d § 2016. Moreover, privileges are seldom absolute, but are subject to a weighing of benefits and harms. Generally when a governmental privilege has been asserted to bar disclosure the court should balance the public interest in the confidentiality of governmental information against the need of a litigant to obtain data, not otherwise available to him, with which to pursue [his] cause of action, and any privilege is qualified not absolute. See Kerr v. United States District Court, 426 U.S. 394 (1976). Even under Arizona law the privilege afforded to Department of Corrections files is not absolute and those files may be disclosed in appropriate cases. See State v. Morales, 129 Ariz. 283, 630 P.2d 1015 (1981) (addressing statutes governing juvenile records). See eg. Foltz, 331 F.3d at 1137 ("the presence of a small number of third-party medical and personnel records that can be redacted with minimal effort constitutes `good cause,' let alone a compelling reason, for this protective order to overcome the strong presumption in favor of public access"). The Court could guess that there is some undefined security risk inherent in the disclosure of these records. However the presumption is in favor of public access, which is
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heightened when the documents are submitted in support of a dispositive motion such a motion for summary judgment, as opposed to some other non-dispositive motion. See Foltz, 331 F.3d at 1136. "This presumption of access may be overcome only `on the basis of articulable facts known to the court, not on the basis of unsupported hypothesis or conjecture.'" Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995) (citations omitted). Because Defendants have not met their burden of establishing such facts, the Court cannot meet it's burden for the requested order. "After taking all relevant factors into consideration, the district court must base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture." Id. Protective Order Against Disclosure - With regard to their intertwined proposal to deny disclosure to Plaintiff, Defendants cite no federal authority for their motion, and thus the Court presumes that it seeks a protective order under Fed. R. Civ. P. 26(c). A protective order under Rule 26(c) requires a prior showing of "good cause." "A party asserting good cause bears the burden, for each particular document it seeks to protect, of showing that specific prejudice or harm will result if no protective order is granted." Foltz, 331 F.3d at 1130. "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test." Beckman Industries, Inc. v. International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3rd Cir.1986)). Just as with the request to seal the documents, Defendants offer nothing to meet their burden of establishing privilege, or specific prejudice or harm to justify a protective order. The lack of disclosure of these records is particularly troublesome in the context of a dispositive motion, particularly on a matter which is apparently at the heart of the parties' dispute. On the other hand, the Court is loathe to blithely direct the release of inmate records within the prison system. IT IS THEREFORE ORDERED that Defendants' Motion to File Documents Under
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Seal, filed April 15, 2008 (#138) is DENIED. IT IS FURTHER ORDERED that Defendants shall have ten days from the filing of this Order to either: (1) file Exhibits C through H to their Motion for Summary Judgment, and serve such exhibits on Plaintiff; or (2) to submit an amended motion for summary judgment without reference to the excluded exhibits; or (3) to file a notice of withdrawal of their motion for summary judgment, filed April 15, 2008 (#136).

DATED: May 8, 2008
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_____________________________________ JAY R. IRWIN United States Magistrate Judge

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